Lin v Minister of Immigration and Multicultural Affairs
[2025] FedCFamC2G 498
•14 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lin v Minister of Immigration and Multicultural Affairs [2025] FedCFamC2G 498
File number: MLG 1764 of 2019 Judgment of: JUDGE SYMONS Date of judgment: 14 April 2025 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – whether the applicant was enrolled in a registered course of study and could satisfy cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) – finding by the Tribunal that the applicant was not enrolled in a registered course of study –no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth) Schedule 2, cll 500.211, 500.212, 500.218
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submissions: 8 April 2025 Date of hearing: 8 April 2025 Place: Melbourne Solicitor for the Applicant: The Applicant represented herself Solicitor for the First Respondent: Mr Gardner, solicitor advocate, of Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
MLG 1764 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZHENZHEN LIN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
14 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to “Administrative Review Tribunal”.
2.The application for judicial review filed on 5 June 2019 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION
By an application filed on 5 June 2019, the applicant seeks judicial review of a decision of the second respondent (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) to refuse the applicant a Student (Temporary) (class TU) Student (subclass 500) visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act).
The Minister opposes the application. The Tribunal entered a submitting appearance and has not participated in the proceedings.
BACKGROUND
The applicant is a citizen of China who arrived in Australia on a Student (subclass 574) visa.
On 30 August 2017, the applicant applied for the visa with the assistance of an education agent employed by S&W Consulting Group (Court Book (CB) 1-32).
The application recorded that the applicant intended to undertake an Advanced Diploma of Leadership and Management at St. Peters Institute.
On 3 November 2017, a delegate of the Minister refused to grant the applicant the visa on the basis that she did not satisfy the genuine temporary entrant (GTE) criterion for the purpose of cl 500 212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 37-42).
On 3 November 2017, the applicant made an application to the Tribunal for review of the delegate’s decision (CB 43-44).
On 9 November 2017, the Tribunal acknowledged the application (CB 57-58).
On 25 February 2019, the Tribunal invited the applicant to provide information connected to the visa requirements that the applicant be enrolled in a registered course of study and that she be a genuine applicant for entry and stay as a student (CB 65-72). The applicant was requested to provide information directed at these requirements by completing a Request for Student Visa Information form (Information form).
On 12 March 2019, the applicant provided the Tribunal with a completed Information form (CB 73-82).
The applicant recorded in the Information form that she consented to the Tribunal deciding the review without a hearing (CB 74). Below the box in which the applicant recorded her consent appeared the following text: (emphasis in original)
Note: if you consent to us deciding your review without a hearing:
•You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.
…
You should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding to this invitation has passed. Additional information may also be given at the end of this form.
The applicant also recorded in the Information form that she had a current Confirmation of Enrolment and recorded “yes” to the question has the applicant been enrolled in a registered course at all times while in Australia as the holder of a student visa (CB 77, 78).
In the box which invited information about future plans, the applicant noted that she was applying to attend the Diploma of Interpreting and Advanced Diploma of Translating courses (CB 81).
DECISION OF THE TRIBUNAL
On 29 May 2019, the Tribunal affirmed the decision not to grant the applicant the visa and prepared a statement of decision and reasons (R) (CB 89-91).
After setting out the background to the visa application and the decision of the delegate, the Tribunal noted that on 29 February 2019 it had sent the applicant an invitation pursuant to s 359(2) of the Act (R, [1]-[4]).
The Tribunal noted that in the response, the applicant had indicated their consent to the Tribunal deciding the review without a hearing and that in those circumstances, the necessary consent had been given under s 360(2)(b) of the Act. As a consequence of s 360(3) of the Act, the applicant was no longer entitled to appear before the Tribunal and the Tribunal had determined the matter on the evidence available to it (R, [5]).
The Tribunal identified the relevant criteria for the visa as being set out in Part 500 of Schedule 2 to the Regulations, and that the primary criteria was found in cl 500.211 to cl 500.218 (R, [6]).
The Tribunal identified the issue in the present case as whether the applicant was enrolled in a registered course of study (R, [6]).
The Tribunal noted that on 3 November 2017, the applicant had provided a Confirmation of Enrolment which confirmed that the applicant was enrolled in an Advanced Diploma of Leadership and Management at St. Peter’s Institute. The course was scheduled to start on 18 September 2017 and to be completed by 16 September 2018. The Tribunal noted that the applicant had provided no other Confirmation of Enrolment to the Tribunal (R, [7]).
The Tribunal referred to the applicant’s response to the invitation on 12 March 2019 (see [11] above) and noted that the applicant had made no reference to an Advanced Diploma of Leadership and Management when asked to provide details of all courses, including current or future enrolment, that the applicant had been enrolled in while in Australia (R, [8]).
The Tribunal noted that despite the applicant’s positive answer to the inquiry as to whether she was currently enrolled in a course of study, the course to which the applicant referred was the Advanced Diploma of Leadership and Management at St Peter’s. The Tribunal noted that the only evidence about this course was a Confirmation of Enrolment, which showed that the applicant was not currently enrolled in that course and that it had in fact concluded (R, [10]).
The Tribunal referred to the requirement in cl 500.211(a) that at the time of decision, the applicant be enrolled in a course of study (R, [11]). The Tribunal noted that “course of study” is defined in cl 500.111 of the Regulations as a “full-time registered course” and that “registered course” is defined in r 1.03 of the Regulations as a course of education or training provided by an institution body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students (R, [12]).
The Tribunal was not satisfied that at the time of decision, the applicant was enrolled in a course of study and that accordingly, cl 500.211 was not met (R, [13]).
APPLICATION FOR JUDICIAL REVIEW
On 5 June 2019, the applicant filed her application seeking judicial review of the Tribunal decision.
On 10 December 2024, a Registrar made orders including that the applicant file and serve 28 days before the final hearing, any amended application, written submissions and/or further evidence. The applicant did not produce any material responsive to this order.
On 25 March 2025, the Minister filed written submissions, and an affidavit of lawyer Emma Hubball affirmed 25 March 2025 which attached the records from the Provider Registration and International Student Management System (PRISMS) relating to the applicant, as at 11 March 2025 (Hubball affidavit).
The matter came before me for hearing on 8 April 2025. On this date, the applicant represented herself with the assistance of an interpreter in the English and Mandarin languages. The Minister was represented by solicitor advocate, Mr Gardner.
GROUNDS OF REVIEW
The application document contains the following grounds:
1. The tribunal does not review the application based on compassionate circumstances.
2. The procedure is too quick, I do not have the second chance to provide more evidence.
3. I confirmed that I am a genuine student, which enrolled in Advanced Diploma of Leadership and Management at Angel United Group Pty Ltd.
The applicant demonstrated a familiarity with these grounds and was invited to address them at hearing. The applicant told the Court that the Tribunal had failed to give her a second opportunity to supplement more material, and the time was “too short”.
When asked by the Court what material the applicant could have provided if given a further opportunity, the applicant replied that she could not recall as she had made her application through an agent.
The submissions of the Minister
The Minister made the following submissions directed at the matters identified at [28] above.
As to ground one, the Minister submitted that it should be dismissed because it concerned the application of compassionate circumstances, which were not relevant to whether the applicant satisfied the primary criteria that she be enrolled in a registered course for the purposes of cl 500.211(a).
As to ground two, the Minister characterised it as being “misconceived” on the basis that the applicant was plainly on notice of the requirements for the grant of the visa and the consequences of failing to provide evidence that she satisfied the relevant criteria. The applicant had been given the opportunity to produce a current Confirmation of Enrolment but had failed, at the relevant time, to do so.
The Minister noted that the applicant had failed to attach any documentation to the Information form and had not provided any further material in the period between submission of the Information form and the decision of the Tribunal.
The Minister acknowledged that while the exercise of a statutory power, such as s 359(1) of the Act, is conditioned by a requirement that it be exercised reasonably, in the circumstances described above, the decision of the Tribunal to proceed without making further inquiries of the applicant (beyond the Information form) was not unreasonable.
The Minister submitted that in any case, any unreasonable exercise of discretion in this case would not have been material. In making this submission the Minister relied on the Hubball affidavit (referred to at [26]) which annexed the applicant’s PRISMS record and disclosed that the last Confirmation of Enrolment held by the applicant was the one relating to the Advanced Diploma of Leadership and Management that had ended on 16 September 2018, a number of months prior to the decision of the Tribunal and the date on which the applicant provided her completed Information form.
As to ground three, the Minister submitted that it failed to reflect the decision in fact made by the Tribunal. The Tribunal (unlike the delegate) had decided the review application for the reason that the applicant was not enrolled in a course of study and did not satisfy clause 500.211(a). The Tribunal was not required to consider whether the applicant was a genuine temporary entrant.
CONSIDERATION
The applicant has not satisfied me that the decision of, or the process adopted by, the Tribunal should be set aside for jurisdictional error.
It is clear that answers given by the applicant in her response to the Information form had the result that the decision made by the Tribunal had an inevitability about it.
In this respect I accept that the Tribunal was entitled to proceed to make a decision on the applicant’s review without hearing further from her, including without extending to her the opportunity to attend a hearing. This was the consequence of the applicant providing her consent to this course, which in turn engaged ss 360(2)(b) and 360(3) of the Act, which disentitle a review applicant to a hearing and the attendant opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
This is not a case like Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, in which Ms Li (through her migration agent) had sought an adjournment of the review to enable her to obtain a favourable skills assessment from a third party. I can discern nothing in the material provided by the applicant to the Tribunal that communicated a desire or intention on her part to provide further evidence that might have improved her capacity to satisfy the time of decision primary visa criterion that she be enrolled in a course of study. Indeed, the applicant at hearing was unable to identify any material that she could or would have provided, and the PRISMS record put before the Court vindicates that position.
The finding that the applicant was not able to satisfy cl 500.211(a) of Schedule 2 to the Regulations was the only one open to the Tribunal on the material that was before it.
The Tribunal did not address the separate GTE criterion – which would have involved consideration of matters directed at whether the applicant was a genuine applicant for entry and stay as a student – and it was not required to do so, having regard to its finding that the applicant did not satisfy the course of study requirement.
While the applicant eschewed the opportunity to attend a hearing, at which dispositive issues would have been identified, she nonetheless was told that the Tribunal might decide the review application on a different basis to the delegate and was asked for information that engaged directly with the visa criterion that was ultimately decisive.
ORDERS
In circumstances where the applicant has not established jurisdictional error in the decision of the Tribunal her application for judicial review filed on 5 June 2019 must be dismissed.
The Minister seeks costs in the sum of $5,400. This amount appears reasonable, including because it represents less than the amount fixed for final hearing in Part 2 of Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The Court will make a costs order in this amount.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 14 April 2025
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